COURTROOM WISDOM: February 2013

Saturday, February 23, 2013

LORD DYSON, M.R

Tuesday, February 19, 2013

Sunday, February 17, 2013

LUCIUS QUINTUS CINCINNATUS LAMAR

GEORGE SHIRAS, JR.

George Shiras, Jr.

Saturday, February 16, 2013

JOHN GLOVER ROBERTS, Jr.

Roberts wrote a dissent in Rancho Viejo, LLC v. Norton, 323 F.3d 1062, a case involving the protection of a rare California toad under the Endangered Species Act.

Notable opinions

Federalism

A dissenting opinion in United States v. Rybar, 103 F.3d 273 (3d Cir. 1996), arguing that a U.S. law banning private citizens from owning submachine guns was similar to one struck down by the Supreme Court in United States v. Lopez and thus outside the authority of Congress under the Commerce Clause of the U.S. Constitution.
A majority opinion in Chittister v. Department of Community & Economic Development, 226 F.3d 223 (3d Cir. 2000). This case concerned an employee's claim of wrongful termination under the Family and Medical Leave Act against the state of Pennsylvania. States are free to maintain sovereign immunity under the U.S. Constitution. Since Pennsylvania had maintained its immunity to such suits, Alito affirmed the lower court's dismissal of the employee’s claims.

First Amendment

A majority opinion in Saxe v. State College Area School District, 240 F.3d 200 (3d Cir. 2001), holding that a public school district's anti-harassment policy was unconstitutionally overbroad and therefore violated First Amendment guarantees of free speech.
A majority opinion in ACLU v. Schundler, 168 F.3d 92 (3d Cir. 1999), holding that a government-sponsored holiday display consisting solely of religious symbols was impermissible, but that a mixed display including both secular and religious symbols was permissible if balanced in a generally secular context.
A dissenting opinion in C. H. v. Oliva et al. (3d Cir. 2000), arguing that the removal and subsequent replacement in "a less conspicuous spot" of a kindergartener's religious themed poster was, at least potentially, a violation of his right to free expression.

Fourth and Eighth Amendments

A dissenting opinion in Doe v. Groody, arguing that qualified immunity should have protected police officers from a finding of having violated constitutional rights when they strip-searched a mother and her ten-year-old daughter while carrying out a search warrantthat authorized the search of a residence.
A unanimous opinion in Chadwick v. Janecka (3d Cir. 2002), holding that there was "no federal constitutional bar" to the "indefinite confinement" of a man imprisoned for civil contempt because he claimed he could not pay his $2.5 million debt to his wife.

Civil rights

A majority opinion in Williams v. Price, 343 F.3d 223 (3d Cir. 2003), granting a writ of habeas corpus to a black state prisoner after state courts had refused to consider the testimony of a witness who stated that a juror had uttered derogatory remarks about blacks during an encounter in the courthouse after the conclusion of the trial.^[18]
A dissenting opinion in Glass v. Philadelphia Electric Company, 34 F.3d 188 (3rd Cir. 1994), arguing that a lower court did not abuse its discretion in excluding certain evidence of past conduct that defendant had created a hostile and racist work environment.
A majority opinion in Robinson v. City of Pittsburgh, 120 F.3d 1286 (3rd Cir. 1997), rejecting a female police officer's Equal Protection-based sexual harassment and retaliation claims against the city and certain police officials and rejecting her Title VII-based retaliation claim against the city, but allowing her Title VII-based sexual harassment claim against the city.

Castle Rock Entertainment, Inc. v. Carol Publishing Group (also in 1997),

Dow Jones v. Department of Justice (1995)

New York Times Co. v. Tasini (1997)

Silverman v. Major League Baseball Player Relations Committee, Inc

ELENA KAGAN

Citizens United v. Federal Election Commission

MODERA

Dharamshi Virji v. Haji Abdulrehman (1950) 24 K.L.R. 24

Friday, February 15, 2013

ZAHOR EL-KINDY

Kagashe v. Didas (1971) HCD 157

(PC) Civ. App. 118-M-70; 6/3/71; El-Kindy Ag. J.

This is appeal against a decision of the District court reversing the decision of a Primary Court. The Appellant alleged in the Primary Court that the respondent crossed the boundary between the parties’ shambas which were adjacent and cut down a mango tree belonging to appellant. After listening to evidence and visiting the site, the primary court held against eh respondent finding that the tree was the property of the appellant. The District court reversed after allowing the respondent to put in additional evidence because he (respondent) had not been asked if he had any witnesses in the Primary Court. The Primary Court Record did not show whether the respondent had been given an opportunity to produce witnesses.

Held: (1) “The Primary Court record is certainly silent on this issue. I cannot say, therefore, that the appellant was given the opportunity to call his witnesses, but with respect, this alone, in this case, was not adequate ground for calling more evidence. The respondent himself did not make this application. This would mean, therefore, that he did not think that he wanted any witness to support his claim. It has often been held (see BUKENE FUFULA v. NSWANZI FUFULA 1970 H. C. D. No. 107 and MICHAEL KOMBERE v. KONE PAROSIO 1970 H. C. D. No. 115) that additional evidence should be taken unless good reasons should be shown and recorded (see section 17(a) of Magistrates courts Act, cap. 537). In my view, there was no adequate reason for doing so. And it appears that the additional evidence was called for after the court had visited the scene and made the sketch plan. This emphasizes my point that it was made as an after thought if the respondent made it all. As this evidence was considered, I would refer to it in spite of the fact that it was incorrectly admitted.”

(2) “The evidence shows that the mango tree was the property of the respondent but the boundary between the parties’ shamba is not clear.”

(3) Appeal dismissed.

BRAMBLE

Deogratus v. R. (1971) HCD 55

Crim. App. 339-A-70; 22/3/71; Bramble J.

The appellant was charged with and convicted with forgery c/ss 335 and 337 of the Penal Code. The particulars alleged that he gave certificates of competence to two people to hold a class “C” and a class “D” driving licence respectively when in fact he had not carried out any test as prescribed by the Traffic rules and therefore the certificates of competence were forgeries.

Held:

(1) “By Section 3333 of the Criminal Procedure code Forgery is the making of a false document with intent to defraud or deceive. Section 335 specifies the various ways in which a person may be said to have made a false document and the only one which is relevant to this case is when a person makes a document purporting to be what in fact it is not. The appellant had the authority to issue the ones in question and subscribed his name to them. They were not false documents. The principle to be applied here is concisely stated in the 5^th Edition of Kenny’ Outlines of Criminal Law page 354:- “writing is not a forgery when it merely contains statements which are false, but only when it falsely purports to be itself that which it is not. The simplest and most effective phrase by which to express the rule is to state that for the purpose of the law of forgery when it merely contains statements which are false, but only when it falsely purports to be itself that which it is not. The simplest and most effective phrase by which to express the rule is to state that for the purpose of the law of forgery the writing must tell a lie about itself.” There was even no evidence that the certificates of competence were false.”

(2) There is no evidence to support the convictions. (3) Appeal allowed, convictions quashed.

KWIKIMA

Paul s/o Jumanne Mzee v. R.(1971) HCD 148

Crim. App. 205-A-70; 20/1/71; Kwikima Ag. J.

The appellant was convicted of robbery with violence contrary to sections 285 and 286 of the Penal Code. It was alleged that the appellant found complainant sleeping with his concubine, beat him up and then took Shs. 60/- and pair of shoes from his.

Held:

(1) “The learned State Attorney was not convinced that these facts go to establish the offence of robbery and I share his doubt …….The evidence on record does not show that what violence as the complainant received from the hands of the appellant was designed to obtain from him any property for retention by the appellant. The offence of robbery could not have been proved at the appellant’s trial.”

(2) “An assault is minor to a robbery, for the use of force or the threat of it more often than not involves assault. For example, brandishing a panga at the intended victim is an assault and so is the actual slashing. The same goes with the gun, club or first. I cannot therefore see how any robber could complete his intention without assaulting his victim. I am reinforced in my view by the case of Elmi bin Yusuf v. Rex 1 TLR (R) 269 when Cluer, J. cited Mitra’s commentary on the Indian Criminal Procedure Code with approval: - ‘When an offence consists of several particulars, a combination of some only of which constitutes a complete minor offence, the graver charge gives notice to the accused of all the circumstances going to constitute the minor offence of which he may be convicted. The latter is arrived at by mere subtraction from the former.” Conviction for robbery quashed and a conviction for assault substituted.

Landmark Cases Decided by Hon. Nyalali (Solo and Panel Cases):

Bi. Hawa Mohamed v. Ally Sefu [1983] TLR 32 (Nyalali, CJ; Makame, JJ.A & Kisanga,JA)

DPP v. Daudi Pete [1993] TLR 22

Ali Salehe Msutu v. Republic [1980] TLR 1
Godfrey James Ihuya and Others v. R. [1980] TLR 197
JUWATA v. KIUTA [1988] TLR 146

Maagwi Kimito v. GibenoWerema [1985] TLR 132
Salim Mbegu v. R. [1981] TLR 279